Gujarat High Court
Icici Lombard General Insurance ... vs Bijolbhai Vastrabhai Rabari ... on 14 December, 2021
Bench: R.M.Chhaya
C/FA/3195/2017 JUDGMENT DATED: 14/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3195 of 2017
With
R/CROSS OBJECTION NO. 132 of 2017
In
FIRST APPEAL NO. 3195 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ICICI LOMBARD GENERAL INSURANCE CO LTD
Versus
BIJOLBHAI VASTRABHAI RABARI (DESAI) & 6 other(s)
=============================================================
Appearance:
MR. RAHUL R DHOLAKIA(6765) for the Appellant(s) No. 1
MR D V KANSARA(7498) for the Defendant(s) No. 6
MS.P J.JOSHI(3888) for the Defendant(s) No. 1,2,3,4,5
NOTICE SERVED(4) for the Defendant(s) No. 7
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 14/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 22.06.2017 passed by the
learned Motor Accident Claims Tribunal (Auxi) Kalol at
Gandhinagar in MACP No.46 of 2013, the Insurance
C/FA/3195/2017 JUDGMENT DATED: 14/12/2021
Company has preferred this appeal under Section 173 of the
Motor Vehicles Act, 1988 (for short "Act").
The original claimants have also preferred Cross
Objections for enhancement against the impugned
judgment and award dated 22.06.2017 passed by the
learned Motor Accident Claims Tribunal (Auxi) Kalol at
Gandhinagar in MACP No.46 of 2013.
2.0. The following facts emerge from the record of this
appeal:
3.0. That on 08.03.2013 at 6.15 PM, Vishnubhai Bijolbhai
Desai went with Gautam Desai on Bike No. GJ-02-AS-7904
and Vishnubhai Bijolbhai Desai had driven the aforesaid
bike on his side and when they reached at Veda- Saldi, one
Driver of Alto Car No. GJ-18-BB-1672 had over track one
Truck, in rash and negligent manner and dashed with the
aforesaid bike and deceased sustained serious injuries and
succumbed to the same. An FIR was lodged with the
jurisdictional police station and the present claim petition
was filed under Section 166 of the Act claiming
compensation of Rs.40 lakhs as compensation.
The Tribunal examined one Ravindrabhai Melabhai
Desai at Exh.22, Bijolbhai Rabari at Exh.14 and Shailesh V
Panchal at Exh.37 and also relied upon the following
documentary evidence which are as under:
Exh.No. Particulars
16 FIR
C/FA/3195/2017 JUDGMENT DATED: 14/12/2021
17 Complaint
18 Panchanama
19 Inquest Panchnama
24 Original copy of certificate issued by Varsha
Engineering, Ahmedabad.
25 Income tax return filed by Ravindra Desai
for AY 2011-12
26 Income tax return filed by Ravindra Desai
for AY 2012-13
27 Income tax return filed by Ravindra Desai
for AY 2013-14
30 Postmortem Report
31 Chargesheet
32 Driving License of Vishnubhai Desai
Considering the evidence on record, driver of Alto Car
bearing No. GJ-18-BB-1672 involved in the accident was
held to be solely negligent for the accident. It was the case of
the claimant that deceased Vishnubhai was earning
Rs.15000/- as salary from HMV Textile Mills and Rs.5000/-
from agricultural. The claimants also relied upon the oral
deposition of Ravindrabhai Desai at Exh.22 to contend that
the deceased earned Rs.15000/- per month. The Tribunal in
absence of any documentary evidence determined income of
deceased at Rs.5470/-based upon the minimum wages
standard as applicable on the date of accident in the State
of Gujarat to skill workers. The Tribunal also awarded 50%
prospective income and after deducting ¼ towards personal
expenses and applying multiplier of 18, awarded a sum of
C/FA/3195/2017 JUDGMENT DATED: 14/12/2021
Rs.13,29,300/- under the head of future loss of income.
Over and above the same, the Tribunal has granted further
compensation as under:
Rs.5000/- : Loss to the Estate
Rs.50000/- : Love and Affection
Rs.9,75,762/- : Medical Bills
Rs.10000/- : Transportation
Rs. 5000/- : Funeral Expenses
Thus, while partly allowing the claim petition, the
Tribunal awarded total compensation of Rs.24,20,100/-
with 9% interest from the date of application till its
realization. Being aggrieved and dissatisfied with the same,
the Insurance Company has preferred this appeal and
claimants have also preferred Cross objection.
4.0. Heard Mr. Rahul Dholakiya, learned advocate for the
appellant- Insurance Company, Ms. P.J. Joshi, learned
advocate for the original claimants and Mr. D.V. Kansara,
learned advocate for the respondent no.6. As notice for final
disposal was issued vide order dated 19.09.2017, the matter
was taken up for final disposal. We have also perused the
original record and proceedings of the case.
5.0. Mr. Dholakiya, learned advocate for the appellant -
Insurance Company has contended that the Tribunal has
wrongly considered the prospective income at the rate of
50% instead of 40%. Mr. Dholakiya, learned advocate for
the appellant further contended that the deceased was 22
C/FA/3195/2017 JUDGMENT DATED: 14/12/2021
years old and was unmarried and therefore, as per the
judgment of the Hon'ble Supreme Court in the case of Sarla
Verma and ors. vs. Delhi Transport Corporation and Anr.
reported in (2009) 6 SCC 121, ½ deserves to be deducted
towards personal expenses. Mr. Dholakiya contended that
there is no evidence except oral assertion that the deceased
was earning Rs.15000/- per month. According to Mr.
Dholakiya, even prospective income is considered in excess
and therefore, according to Mr. Dholakiya no rise in
quantum is required to be made by allowing the cross
objection. Mr. Dholakiya further contended that the cross
objection is meritless and same deserves to be dismissed.
On the aforesaid ground, it was contended by Mr. Dholakiya
that the appeal be allowed as prayed for.
6.0. Per contra, Ms. Joshi, learned advocate for the original
claimants has opposed the present appeal. Relying upon the
oral deposition at Exh.22, it was contended by Ms. Joshi
that the prospective income is rightly considered and
contention raised by Mr. Dholakiya for the Insurance
Company deserves to be negatived. Ms. Joshi submitted
that appeal filed by the Insurance Company deserves to be
dismissed and cross objection filed by the claimants
deserves to be allowed.
7.0. No other and further submissions/ contentions have
been made by the learned advocates for the respective parties.
8.0. Upon reappreciation of evidence on record and as rightly
observed by the Tribunal, there is no iota of evidence that the
C/FA/3195/2017 JUDGMENT DATED: 14/12/2021
income of the deceased was Rs.15000/-. Upon reappciation of
the evidence we find that on the contrary there is no
contradiction in the evidence itself. The certificate relied upon
by the claimants is of another industries whereas it is asserted
by the respondents claimant that deceased was working in
HMV Textile Mills. In light of the aforesaid contention raised in
the cross objection that the income of the deceased should be
considered as Rs.15000/- is baseless and same deserves to be
negatived. On re-appreciation of the evidence on record, we
are of the opinion that the Tribunal has rightly determined the
income of the deceased based upon minimum wages standard
in absence of any believable evidence and has rightly
determined the income of deceased at Rs.5470/- per month.
The record indicates that the deceased was 22 years old on
the date of accident and was unmarried. Hence, following the
judgment of the Hon'ble Supreme Court in the case of Sarla
Verma (supra) 1/3rd deserves to be deducted as personal
expenses as parents were there and sibling was also there.
Though, we find that some excess amount is granted under
the head of loss of estate, love and affection and principally
that the Tribunal has granted just compensation, we do not
alter or modify the same. All the grounds raised in the cross
objections are deserves to be negatived. Accordingly, the
respondents claimant would be entitled to compensation as
under:
Rs. 5470/- per month (income) + Rs.2188/- (40%
prospective income) = 7658/- - 2553/- (1/3 towards
personal income = Rs.5105/- x 12 (pa)= 61260/- X 18
(Multiplier as the age of the deceased was 22 years) =
C/FA/3195/2017 JUDGMENT DATED: 14/12/2021
11,02,680/-
Having come to the aforesaid conclusion, therefore,
the respondents - original claimants would be entitled to
total compensation as under:
Particulars Amount (Rs.)
Future loss of income 11,02,680/-
Loss of estate 50,000/-
Love and Affection 50,000/-
Transportation Charges 10,000/-
Funeral Expenses 5000/-
Medical Bills 9,75,762/-
Total Compensation 21,93,442/-
9.0. Thus, the claimants would be entitled to compensation of
Rs.21,93,442/-- with 9% interest from the date of application
till its realization. As the Tribunal has awarded an amount of
Rs. 24,20,100/-, the appellant Insurance Company shall
therefore, be entitled to refund of Rs.2,26,658/- with
proportionate interest and costs thereon. The Tribunal shall
refund the said amount forthwith to the appellant Insurance
Company.
10. In view of the aforesaid, the impugned judgment and
award passed by the Tribunal is modified to the aforesaid
extent. Thus, appeal is partly allowed and Cross objection
deserves to be dismissed.
sd/-
(R.M.CHHAYA,J)
sd/-
(MAUNA M. BHATT,J)
KAUSHIK J. RATHOD
